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Considine v. Murphy

Supreme Court of Georgia

June 1, 2015

CONSIDINE
v.
MURPHY et al

Certiorari to the Court of Appeals of Georgia -- 327 Ga.App. 110.

Judgment affirmed.

Cecily Considine, pro se.

Carlock, Copeland & Stair, Johannes S. Kingma, Brian S. Spitler, Christopher J. Hoffman, for appellees.

NAHMIAS, Justice. Thompson, C. J., Hines, P. J., Benham, Hunstein, and Melton, JJ., and Judge Stephen D. Kelley concur. Blackwell, J., not participating.

OPINION

Page 177

Nahmias, Justice.

We granted certiorari to review the Court of Appeals' decision affirming the dismissal of Cecily Considine's lawsuit against the receivers appointed in her separate lawsuit against Michael Affatato on the ground that the receivers have official immunity. We conclude that this lawsuit against the receivers should instead have been dismissed on the ground that Considine failed to obtain leave from [297 Ga. 165] the trial court in her lawsuit against Affatato before filing a separate lawsuit against the receivers appointed in that case. We affirm the Court of Appeals' judgment on this ground, and we therefore vacate the court's discussion of immunity.

1. In April 2008, Cecily Considine filed a lawsuit in the Superior Court of Cherokee County against her former business partner, Michael Affatato. She alleged conversion, unjust enrichment, fraud, and multiple other claims arising out of a bitter dispute over the right to manage and control the assets of a company known as Model Master, which Considine describes as a business " with international presence in engineering and 3D modeling technology." On September 3, 2008, the court entered a Consent Order finding that " the appointment of a receiver pursuant to OCGA § § 9-8-1 through 9-8-14 is necessary to preserve the property of Model Master during the pendency of this litigation." The Consent Order instructed Considine and Affatato to identify a mutually agreeable receiver within 14 days, listed the " limited purposes" of the receiver's appointment, and required the receiver to make a final accounting to the court prior to discharge. The Consent Order concluded:

The Receiver shall have no responsibility to the parties hereto other than to perform faithfully within the directions contained in this Order. The Receiver shall not be liable to the parties hereto for any losses, liabilities, expenses, claims, damages, or demands arising out of or in connection with said performance, except for gross negligence or willful misconduct, as determined by a Court of competent jurisdiction.

Considine and Affatato then executed a letter agreement with certified public accountant George W. Murphy and his accounting firm, Murphy & McInvale, P.C. (M& M), " confirm[ing] the engagement of Murphy & McInvale ... as the Court appointed Receiver for Model Master." The agreement incorporated the Consent Order by reference and repeated its language concerning the receivers' liability. In September 2009, the court entered a stipulation and consent order expanding the receivers' authorization " to include all powers allowed a receiver under Georgia law."

On September 29, 2010, while her lawsuit against Affatato was still pending and without seeking prior approval from the court in that case, Considine filed a separate lawsuit in the Superior Court of Cherokee County against Murphy and M& M, raising claims of gross negligence and breach of fiduciary duty based on their alleged [297 Ga. 166] mismanagement of the receivership; she later amended her complaint to add additional claims. The receivers filed a motion to dismiss under OCGA § 9-11-12 (b) (1), asserting that the court lacked subject matter jurisdiction based on their official immunity and Considine's failure to obtain leave of court in the Affatato

Page 178

case before filing a separate lawsuit against them. The trial court held a hearing on the motion, but Considine voluntarily dismissed her lawsuit against the ...


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